BLACK & CLARE
[2012] FMCAfam 626
•29 June 2012
FEDER AL MAGISTRATES COURT OF AUSTRALIA
| BLACK & CLARE | [2012] FMCAfam 626 |
| FAMILY LAW – Children – Parenting orders – final orders – best interests of the children – parental responsibility – equal shared parental responsibility – substantial and significant time – two children aged 7 years and 4 years – where father works on an (omitted) for 21 days at a time – where father’s schedule includes blocks of 21 days and 42 days in Sydney. PRACTICE & PROCEDURE – Affidavits – lengthy affidavits – prolixity – irrelevant material – undesirability of prolix affidavits containing irrelevant material. PRACTICE & PROCEDURE – CONSENT ORDERS – where some Orders made by consent during the final hearing. |
| Family Law Act 1975, ss.60CA, 60CC, 60CD, 61DA, 61DB, 65DAA |
| Black & Clare [2011] FMCAfam 477 Ensabella and Ensabella (1980) 6 Fam LR 174; FLC 90-867 Fletcher & Prince [2011] FamCAFC 170 Mallahan & Mallahan [2010] FamCA 631 |
| Applicant: | MR BLACK |
| Respondent: | MS CLARE |
| File Number: | SYC 3529 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 30-31 May,1 June 2012 |
| Date of Last Submission: | 1 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bell |
| Solicitors for the Applicant: | Neville & Hourn Legal |
| Counsel for the Respondent: | Ms Christie |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
BY CONSENT
That all previous parenting Orders be discharged.
That the Father and Mother shall have equal shared parental responsibility for, and make decisions in relation to major long-term issues affecting the children of the relationship namely: Y (“Y”) born on (omitted) 2005 and X (“X”) born (omitted) 2008 including but not limited to:
(a)the children’s education including but not limited to enrolment at school, pre-school and day-care;
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s names;
(e)all changes to the children’s or the parents’ living arrangements that make it significantly more difficult to carry out the time the children spend with or live with each parent under these Orders.
That the Father and the Mother shall individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the children Y and X on a day to day basis during periods when the children are living with or spending time with that respective parent.
The children live with the Mother.
That upon X commencing primary school and for the shorter school holidays at the conclusion of Terms 1, 2 and 3, the children shall spend half of these school holiday periods with each party in a block, with the Father to notify the mother as to which half prior to the commencement of each school term.
That school holiday periods for the children will be taken to commence at 9:00am on the day immediately after the last day of required school attendance and will cease at 5:30pm on the day immediately before the children’s first day of required school attendance.
Special Occasions
That notwithstanding any other Order herein, and commencing from the date of these Orders, the children shall spend time with each of the parties on special occasions as follows and with all other time pursuant to these Orders to be suspended on these occasions:
Christmas
7.1With the Father from 12 noon on Christmas Eve until 12 noon on Christmas Day in even numbered years, commencing 2012;
7.2With the Mother from 12 noon on Christmas Day until 12 noon on Boxing Day in even numbered years commencing 2012;
7.3With the Father from 12 noon on Christmas Day until 12 noon on Boxing Day in odd numbered years commencing 2013; and
7.4With the Mother from 12 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years, commencing 2013.
Mother’s Day/Father’s Day
7.5With the Mother from 5:30pm on the Saturday immediately preceding Mother’s Day until 5:30pm on Mother’s Day in each year; and
7.6With the Father from 5:30pm on the Saturday immediately preceding Father’s Day until 5:30pm on Father’s Day in each year.
Birthdays:
7.7On each of the children’s birthdays, the children shall spend time with the parent with whom they are not ordinarily spending time pursuant to these Orders as agreed between the parties and failing agreement as follows:
7.7.1If on a week day from the conclusion of school/pre-school until 6:00pm;
7.8On each parent’s birthday, the children shall spend time with that parent as follows:
7.8.1If on a week day from the conclusion of school/pre-school until 6:00pm;
New Years Eve:
7.9With the Mother from 12 noon on New Years Eve until 12:00 noon on New Years Day in 2013 and each alternate year thereafter; and
7.10With the Father from 12 noon on New Years eve until 12:00 noon on New Years Day in 2012 and each alternate year thereafter.
That for the purposes of changeovers that do not occur to/from school or preschool (including for school holidays and special occasions) this shall occur as agreed between the parties and failing agreement with the Mother to deliver the children to the Father’s residence at the commencement of the Father’s time with the children and the Father to return the children to the Mother’s residence at the conclusion of his time with the children.
That in the event the Mother is not able to participate in changeovers, then the Mother shall be permitted to nominate another person (being the maternal grandmother or such other person nominated by the Mother) to attend in her place.
That each party be at liberty to communicate with the children by telephone and other electronic means at any reasonable time with each party to facilitate such communication between the children and the other parent.
That in the event the children should at any time whilst in the care of either parent express a wish or desire to telephone the other parent then each party shall allow the children to do so and shall provide such assistance to the children as they may require.
That the parties shall keep each other informed at all times of their residential addresses, personal email addresses and personal contact telephone numbers (mobile and landline) and shall advise the other of any change within 48 hours of such change.
That if either party proposes to take the children out of the Greater Sydney Metropolitan area for 24 hours or longer then, prior to such travel, they shall provide to the other party details of the following:
13.1Length of the trip, including dates of travel; and
13.2Address and telephone number of the accommodation where the children will be staying.
That both parties shall, as soon as practicable, notify the other parent in the event either of the children sustain an injury, become ill, or require any medical treatment including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to enable the other party to attend at the hospital in the event of hospitalisation.
That the parties shall keep each other informed regarding all issues relating to the children including, but not limited to, the children’s educational progress, health and well-being and this will occur (other than in the case of emergency) via email.
Both the Father and the Mother shall provide such consents and authorities as may be required:
16.1By any school or pre-school attended by the children to enable both parties to receive reports, notices and correspondence relating to the children and to permit both parents to attend special events, or other school activities involving the children and to speak to the children’s teachers concerning the performance of the children at school; and
16.2By any hospital, medical practitioner or health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to the children’s health, welfare and treatment.
That both parties shall ensure and continue to ensure that any medical, health, developmental, dental, behavioural and counselling professionals involved with the children are directed and authorised by the parties to communicate with and provide information and copies of documents to both parties at their own cost.
That both parties shall be at liberty to attend school functions, school activities or extra curricular activities involving the children, notwithstanding this may occur at a time when the children are with the other parent.
That neither party shall make a commitment for the children, or enrol the children in any extra curricular activity which occurs during a period when the children will be with the other parent pursuant to these Orders, without first advising the other parent in writing of the commitment and obtaining the other parent’s consent to such commitment.
Overseas Travel:
That upon X commencing primary school, each party shall be permitted to take the children outside of Australia on holidays, provided that he or she gives to the other parent written details of their intention to do so not les than thirty (30) days in advance (or such other notice as agreed between the parties) together with the following:
20.1Dates of departure from, and return to Australia;
20.2Copy of itinerary provided by travel agent or airline;
20.3Copy of return airline ticket(s);
20.4Places the children will visit whilst away from Australia; and
20.5Details of how the children can be contacted whilst away from Australia including contact telephone number and address of accommodation for the duration of the trip.
That any international or interstate holidays taken with the children pursuant to Order (20) above shall occur during that parent’s time with the children during the children’s school holidays, unless otherwise agreed in writing between the parties.
That each party shall, upon X commencing primary school, do all things and sign all documents necessary to obtain or renew Passports for the children within fourteen (14) days of a written request being received from the other party.
Other:
That neither party shall denigrate the other party or a member of the other party’s family or household to the children or in the presence or hearing of the children.
That both parties are restrained from passing information or messages through the children to the other party.
AND IT BE NOTED:
A.That both parties will encourage and facilitate the children’s relationships with extended family members and to this end, the mother agrees to informally negotiate time and communication between the children and the paternal grandmother at times when the father is away from Sydney at such times as agreed to between the mother and the paternal grandmother and taking into account the children’s extra curricular activities and daily routine.
AND IT IS FURTHER ORDERED THAT:
UNTIL THE TIME THAT THE CHILD OLIVER COMMENCES TO ATTEND SCHOOL the children Y and X are to spend time with the Father when he is in Sydney in accordance with his work roster as follows:
(a)each alternate weekend during the school term from the first day being either a Thursday or a Friday when the Father returns to Sydney and from Thursday thereafter from 9:00am in the case of X and from immediately after school in the case of Y until the commencement of school or pre-school on the Monday and each alternate week thereafter;
(b)if the Monday immediately following the weekend referred to in Order (a) above is a public holiday then the father’s time with the children will extend until 5:30pm on the Monday;
(c)each Tuesday afternoon during the school term from the conclusion of school or pre-school until the commencement of school or pre-school on the Wednesday morning PROVIDED THAT if X is not due to attend pre-school on the Wednesday then the Father is to return him to the Mother’s residence immediately after delivering Y to school;
(d)during the New South Wales school holiday periods in 2012 the children Y and X are to spend time with the Father for a period from 9:00am on the Thursday until 5:30pm on the Tuesday for which purpose the Mother is to deliver the children to the Father’s residence at the commencement of their time with him and the Father is to return the children to the Mother’s residence at the conclusion of their time with him;
(e)during the New South Wales school holiday periods from 1 January 2013 until X commences school the children Y and X are to spend time with the Father for a period from 9:00am on the Thursday until 5:30pm on the Wednesday for which purpose the Mother is to deliver the children to the Father’s residence at the commencement of their time with him and the Father is to return the children to the Mother’s residence at the conclusion of their time with him; and
(f)at such other times as the parties shall agree.
FROM AND AFTER THE TIME THAT THE CHILD X COMMENCES SCHOOL the children Y and X are to spend time with the Father when he is in Sydney in accordance with his work roster as follows:
(a)each alternate weekend during the school term from the first day being either a Thursday or a Friday when the Father returns to Sydney and from Thursday thereafter from immediately after school until the commencement of school on the Monday and each alternate week thereafter;
(b)if the Monday immediately following the weekend referred to in Order (a) above is a public holiday then the Father’s time with the children will extend until the commencement of school on the Tuesday morning;
(c)each Tuesday afternoon during the school term from the conclusion of school until the commencement of school on the Wednesday morning;
(d)for half of the Autumn, Winter and Spring school holidays in each year, commencing on the day after the school term ends insofar as it accords with the Father’s date of return to Sydney; and
(e)during the New South Wales Christmas/January school holidays for half of the holidays with each parent in a week-about arrangement as agreed and failing agreement with the Mother to have the children for the first week in even numbered years commencing in 2014 and the Father to have the children for the first week in odd-numbered years commencing in 2015; and
(f)at such other times as the parties shall agree.
FOR THE PURPOSES OF CLARITY the Father’s time with the children Y and X as provided by Orders (25)(a) and (26)(a) above will commence on the day immediately after he returns to Sydney from his work commitments and at all other times will commence on the Thursday.
Notwithstanding the provisions of any other Order above the children Y and X are to spend time with each of the parties on the following special occasions as follows:
(a)if either of the children’s birthdays or either of the parents’ birthdays falls on a weekend or on a day when the children are not required to attend school, then with the Father or Mother as the case may be from 9:00am until 2:00pm;
(b)with the Father from 5:30pm on the Thursday before Good Friday until 5:30pm on Easter Saturday in each year;
(c)with the Mother from 5:30pm on Easter Saturday until 5:30pm on Easter Monday in each year;
The Mother is to retain possession of the children’s passports at all times other than when the children are travelling overseas with the Father.
The Mother must make the children’s passports available to the Father at all times when the children are to travel overseas with him in accordance with these Orders.
The Father is to forward to the Mother a copy of his work roster as soon as is reasonably possible after he receives it.
Both parties must ensure that when the children are in their care they are only permitted to watch films or television shows that have the appropriate rating for the children’s age group.
Each party is to ensure that the children have adequate sunscreen applied and wear appropriate headgear to avoid sunburn.
IT IS NOTED that publication of this judgment under the pseudonym Black & Clare is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3529 of 2010
| MR BLACK |
Applicant
And
| MS CLARE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of two boys, Y, aged seven, and X, aged four, for orders that they should spend more time with him. The boys presently live with their mother.
The Father is an (occupation omitted) by trade who works as a (occupation omitted) on (omitted). He has been so employed since 1999. The parenting orders that he seeks need to take into account the requirements of his employment. He deposes in his affidavit sworn on 18th May 2012 that his normal roster involves the following arrangements:
…away at work for 21 days, then home for 21 days, then away at work for 21 days, and then back home for 42 days. Then the pattern repeats itself again.[1]
[1] Affidavit of Mr Black 18.5.2012 at paragraph [12]
Issues
There has been a high degree of conflict between the parties, although it must be stressed that this is not a case where family violence is an issue.
The Father’s counsel, Mr Bell, summarised the issues between the parties in this way:
a)Appropriate amount and nature of arrangements for the children to spend time with their father;
b)Attitude of mother and family where relevant to the Father;
c)Willingness of mother to develop and encourage relationship with father;
d)Willingness of mother to realistically make arrangements for the children both (to) abide the terms and spirit of the Orders and otherwise meet the needs of the children in developing their relationship with their father and related matters;
e)Implications of the Father’s work commitments and how they require the parties to give appropriate cooperation.
The Mother’s counsel, Ms Christie, has summarised the issues between the parties as follows:
·The ages of the children, especially X, at their parents’ separation;
·The nature of the Father’s work roster and its impact on the children’s routine;
·The nature of the relationship between the parties, including their capacity to communicate;
·The impact of the parties’ different parenting styles;
·The Father’s attitude to his responsibilities as a parent;
·The attitude of the Father and his family towards the Mother;
·The importance of Easter Sunday to the Mother and her family.
The Single Expert, Dr H, identifies the following issues in her Report of 3rd April 2012:
a)The time the children spend with the Father;
b)The children’s ages and developmental needs;
c)The acrimonious relationship between the parents.
Orders Sought
The orders sought by the Father are contained in his Further Amended Initiating Application filed on 5th April 2012. The Father seeks orders that the children should live with their mother but should spend substantial and significant time with him when he is in Sydney in accordance with his work roster. As summarised in his Case Outline, they are:
a)In fortnightly cycles,
i)From the first Friday when the Father returns from work to Sydney, with X from 9:00am and with Y from after school on the Friday, then Saturday, Sunday and Monday until 9:00am or the start of school on Tuesday in the first week.
ii)On the Thursday in the first week from 9:00am for X and from after school for Y until 5:00pm on the Saturday of the first week.
iii)From 9:00am for X and from after school for Y on the Friday in the second week, until 9:00am or before school on the Tuesday.
iv)From 3:00pm to 5:30pm on the Tuesday before the Father flies out for work on the Wednesday, only in the week after the children would have returned to the Mother on the preceding Saturday.
The times sought by the Father in his proposed Order 5.4 in his Further Amended Application appear to cover every weekend during the periods when he is in Sydney, although such a proposition was not argued during the hearing.
The Mother set out the orders that she sought in her Amended Response and then in Minutes of Orders handed up in Court on separate days. The most recent Minute was handed up on the final day of the hearing. The orders sought by the Mother are intended to take into account the fact that the younger boy, X, is still at pre-school and will not start school until 2014.
Areas of Agreement
On the second last day of the hearing, the parties entered into Consent Orders which covered a considerable number of the parenting issues between them. Those Orders were made as Consent Orders on the final day of the hearing.
The Consent Orders cover the following areas:
a)Equal shared parental responsibility;
b)That the children would live with their mother;
c)School holiday time with the Father once X commences attending school;
d)Christmas Eve, Christmas Day and Boxing Day;
e)Mother’s Day and Father’s Day;
f)The children’s birthdays (if the day falls on a weekend);
g)The parents’ birthdays (if the day falls on a weekend);
h)New Year’s Eve and New Year’s Day;
i)Changeovers;
j)Telephone communication between the parents and the children;
k)Residential addresses and telephone numbers;
l)Arrangements for travel with the children out of the Greater Sydney Metropolitan Area;
m)Notification of illness or injury sustained by the children;
n)Receipt of information from schools, pre-school, hospitals, medical practitioners and other health care professionals;
o)Attendance at school functions;
p)Restraint on extra-curricular activities impinging on the other parent’s time with the children;
q)Arrangements for overseas travel;
r)Passports for the children;
s)Restraint on denigration of the other party or their family;
t)Restraint on passing information through the children.
The Court noted that the Mother agreed to negotiate with the paternal grandmother to arrange times for her to see the children at times when the Father is away from Sydney.
The parties have agreed on a considerable number of issues, but the basic question of the time the Father spends with the children during school term time remains to be decided.
Other matters that need to be decided are:
a)The time spent with the parents during the Christmas/January school holidays in each year;
b)The time the children will spend with the Father during the short school holidays (the Autumn, Winter and Spring school holidays) between the date of the hearing and 2014, when X commences school;
c)Arrangements for Easter (Easter Sunday is said by the Mother to be of particular religious significance to her);
d)Time spent with each parent on either the children’s birthdays or the parties’ birthdays if those days do not fall on a week day; and
e)Whether or not the Mother should normally retain possession of the children’s passports.
The Mother in her Minute of Orders submitted on the last day of the hearing also seeks an Order for costs, but no submissions were made as to why such an order should be made.
Background
The Father was born on (omitted) 1969. He will shortly attain the age of 43 years.
The Mother was born on (omitted) 1970. She is about to turn 42.
The parties started living together on 15th June 2002 (on the Mother’s account) or late December 2003 (Father’s account)[2]. They were married on (omitted) 2004.
[2] Affidavit of Mr Black 18 May 2012 at [5]
There are two children of the marriage, Y and X. Y was born (omitted) 2005. X was born on (omitted) 2008.
The parties separated in February 2009 but remained living under the one roof until August 2009, when the Father left the matrimonial home. The parties were divorced on 28th July 2010.
The Father commenced proceedings for parenting and property orders in this Court on 23rd June 2010.
On 20th May 2011, after an interim hearing, Orders were made until further order providing that:
a)The parties were to have equal shared parental responsibility for the children;
b)The children would live with their mother;
c)Y would spend time with his father:
i)after school on Tuesdays and Wednesdays;
ii)on alternate weekends when the Father was in Sydney from the conclusion of school on Friday until the commencement of school on Mondays, or until the commencement of school on Tuesday if the Monday should be a public holiday; and
iii)other special days like birthdays and Father’s Day.
d)X would spend time with his father:
i)during the day on Tuesdays and Wednesdays;
ii)on the same weekends as Y from Friday afternoon until Saturday afternoon and then during the day on the Sunday; and
iii)other special days like birthdays and Father’s Day.[3]
[3] Black & Clare [2011] FMCAfam 477
On 22nd September 2011 the parties entered into consent orders finalising their property proceedings.
Evidence
The Father relied on the following affidavits:
a)his affidavit of 18th May 2012;
b)the affidavit of his sister Ms C sworn on 7th May 2012;
c)the affidavit of his mother Mrs Black sworn on 7th May 2012; and
d)the affidavit of his friend Mr J sworn or affirmed on 7th May 2012.
The Father also sought to rely on an affidavit by Dr B, a consulting Clinical Psychologist but I ruled the affidavit inadmissible.
The Mother relied on her affidavit sworn 10th May 2012.
The size of the Father’s and Mother’s trial affidavits caused a degree of concern at the start of the hearing. The Father’s affidavit consisted of 81 paragraphs over 26 pages, together with a number of annexures. The Mother’s affidavit was gargantuan in size, running to 235 paragraphs over 63 pages, plus annexures.
I brought to the attention of the parties’ counsel my concerns about the size of the affidavits, referring them to the decision of Fogarty J in Ensabella and Ensabella[4], where his Honour made an order for costs in favour of the husband as a result of his having to respond to an affidavit of some 43 pages in length. His Honour said:
substantial portions of the affidavit dealt in inordinate and unnecessary length with matters which were only of marginal significance…
…there has to be an outward limit to such matters and it seems to me that upon any reasonable test this affidavit was prolix and contained many matters of detail which it was unnecessary and unreasonable to include.[5]
[4] (1980) 6 Fam LR 174: FLC 90-867
[5] (1980) 6 Fam LR 174 at 177; FLC 90-867 at 75,504-75,505
Counsel for the parties, having been warned that the hearing should be confined to the three days which had been allocated, very properly prepared a trial plan to ensure that the evidence could be taken and the submissions made within the original time.
The Father gave oral evidence and was cross-examined by Ms Christie of counsel, who appeared for the Mother. He told the Court that he had moved from his previous address on the (omitted) to the suburb of Property W . The Mother had moved from the (omitted) area to Property P . In his evidence the Father seemed to be somewhat put out by the Mother’s move, although the distance is not particularly far in terms of a large city like Sydney.
The Father’s friend Mr J, the Father’s mother Mrs Black and the Father’s sister, Ms C, all gave oral evidence and were subjected to cross-examination.
Ms C lives in the same suburb as her brother with her husband and their three children. She deposed that she lives only about four streets away from the Mother. However, it is clear from Ms C’s evidence that she and her former sister in law are not, and were not, friends. She described the Mother as someone who always had to have her own way and said that she found her to be “a very controlling person”.
The Mother gave oral evidence and was cross-examined by Mr Bell, counsel for the Father. She said that she and the Father had arranged a gradual increase in the time the children spend with the Father, both in the school holidays and on weekends. They had arranged an increase of time over the Easter break, so that X had started spending four nights in a block with his father.
X now attends pre-school on Mondays and Tuesdays. The pre-school he attends offers both a two day and a three day program. The Mother proposes that X would attend pre-school for three days a week in 2013 and commence school at the beginning of the first school term in 2014.
The Single Expert’s Reports
Dr H, who has qualifications in psychology and social work, was appointed Single Expert to prepare a Report to the Court. She first interviewed the parties and the children on 26th February 2011 and prepared her first Report on 7th March 2011. This Report and a Memorandum dated 13th March 2011 in which she answered a number of specific questions were considered at the interim hearing. Dr H updated her Report for the purposes of the final hearing and this Report, dated 3rd April 2012, was released to the parties on 11th April 2012.
For the purposes of her later Report, Dr H again interviewed both parents and the children. She also interviewed the paternal grandmother, Mrs Black.
In this Report, Dr H noted that the Father’s amended proposal was that the parties should share parental responsibility and that the children would live with their mother but spend substantial time with him when he is in Sydney.
Dr H noted that since the birth of X the parties had sought professional advice for their marital and parenting issues “without notable success”.[6] The parties had had in excess of 21 appointments with Dr M, a child and family psychiatrist.
[6] Report 3.4.2012 at paragraph [8]
Dr H reported the Mother to say that she wanted the children to spend time with their father in accordance with what is suitable for their age and stage of development. The Mother said that visiting the Father every second week seemed “tolerable” for Y except that she does not believe the Father feeds him and gets him to bed early enough on Sunday nights. X returned a day earlier than Y and the Mother believed that staying an additional night would be too stressful for him.
On Tuesday afternoons after school the Father has taken the children to spend time with his sister (Ms C) and their cousins:
Ms Clare reports Y and X enjoy these visits.[7]
[7] Report at [15]
Dr H stated that:
Ms Clare considers the best arrangement would be to maintain the status quo with gradual increments until the children are comfortable to stay for a week at a time with their father. She also considers it will be better for the boys to be together as it gives X comfort to know Y is sleeping close by (in the bunk beds). She was not in favour of orders committing the boys to one afternoon every week with their paternal grandmother noting that they have other after-school routines (e.g. soccer training will start soon).[8]
[8] Ibid at [16]
The Father told Dr H that he considered the Mother to be overly protective of the children and felt that the children were both old enough to manage overnight stays with him. Dr H noted that the Father asserted that “X does not like being returned home earlier than Y and has asked to be allowed to stay on with his father.”[9]
[9] Ibid at [19]
The Father told Dr H that he has now formed a relationship with a lady named Ms J, although he does not live with her. Ms J did not attend the interviews with Dr H. The Father explained this in his affidavit of 18 May 2012:
Ms J and I do not have plans to live together nor to get married. Hence, Ms J did not attend the interviews with Dr H for the updated family report.[10]
[10] Affidavit of Mr Black 18.5.2012 at [56]
Dr H observed the children interacting with their parents. She said that the children showed “secure base behaviour” in the presence of each parent and that “both adults treated the children appropriately and gently.”[11]
[11] Report at [23]
Dr H reported an incident where X burst into tears when it was time to go:
Mr Black picked X up and cuddled him. X clung tightly to Dad’s neck. Mr Black succeeded in soothing the child’s distress sufficiently for X to release his grasp and accept the separation.[12]
[12] Report at [24]
In her Evaluation, Dr H stated that the children were affectionately bonded to both parents. She referred to the “emotional negative reactivity” that the parties brought about in each other. She expressed the view that X needs to rely on his father to down-regulate stress until he is old enough to do it for himself. The Father appeared to be quite successful in comforting his distressed child, although the Mother appeared anxious.
The boys are a year older than they were when previously assessed, Y has made a good adjustment to school and X has settled in at his pre-school. However, Dr H stated:
What remains the same is the Mother’s lack of confidence in the Father’s parenting and the Father’s perception the Mother is intrusive on his relationship with his sons.[13]
[13] Ibid at [27]
Dr H expressed the opinion that the best arrangement for the children is a predictable schedule that minimises face-to-face handovers between the parents, to insulate them from the conflict between their parents. Shared care was not recommended because the parents cannot collaborate well enough for substantially shared care to work well.
The recommendations made by Dr H are:
a)Alternate extended weekend visits by the children to their father (Thursday to Monday or Friday to Tuesday) with changeovers at school or pre-school wherever possible to obviate the need for the parents to meet;
b)Mid-week contact weekly or fortnightly with the paternal grandmother during the Father’s absences should be informally arranged between the Mother and the grandmother as such an arrangement will help maintain the children’s family ties to paternal kin; and
c)If X copes well with alternative weekend visits to his father the length of the children’s stays with him during the school holidays could be incrementally increased from four days to seven days by the time X starts school.
Dr H had previously recommended in her Report of 7th March 2011 that wherever possible the boys should travel as a pair, especially to overnight and weekend stays with their father.[14] She reiterated that view in her oral evidence.
[14] Report 7.3.2011 at [67]
Submissions
Counsel for the Father submitted that there did not seem to be an argument that the children do not benefit from spending time with their father and their mother. There is a sense of the parents having moved on.
Mr Bell referred the Court to Dr H’s first Report, saying that the discussion about tension at handovers between the parents could now be seen in a more positive light. The later Report showed that both children displayed secure base behaviour and were affectionately bonded to both of their parents.
It was submitted that the Mother’s concern expressed in her evidence about the types of films being watched by the children when viewing DVDs with their father could be dealt with by a general order that the parties were to ensure that the films watched by the children should be in line with the appropriate classification.
It was further submitted that the number of handovers should be minimised in line with Dr H’s recommendations. The Father would provide a copy of his monthly travel plan to the Mother when it became available.
Counsel for the Mother submitted that there was no question about equal shared parental responsibility. Neither party sought an equal time order. Both parties seek an order that the Father should spend substantial and significant time with the children. It was further submitted that the children have a good relationship with both parents. There are no issues about abuse, neglect or family violence. As Ms Christie put it, this is not a “primary considerations” case. It is an “additional considerations” case.
The parties differ about time during the Christmas/January school holiday periods and for the school holidays until X commences attending school, which is intended to be at the commencement of the first school term in 2014. According to the aide-memoire submitted by counsel for the Father in respect of the time sought with X, the Father seeks 6 nights in the July school holidays and nine nights in a row in September.
Ms Christie submitted that the Mother seeks an order that the children should be with her on Easter Sunday each year. Easter Sunday is very important to the Mother and her family as Christians and she wants the children to be with her and her extended family on that day.
It was also submitted that the Mother opposed the proposal by the Father that there should be specific order providing that the children should spend time with the paternal grandmother on occasions when he is away because of his work. Ms Christie said that the grandmother was not a party to the proceeding and it would be procedurally unfair to the mother to join the grandmother at that stage. The grandmother comes to Sydney every week and the evidence does not support the necessity for an order to serve the best interests of the child.
It was further submitted that it was not appropriate for the Mother to offer the Father an opportunity to mind the children at times when she is attending university.
As to the children’s birthdays, Ms Christie said that if they fall on a week day the parties have agreed on a procedure. If the birthday falls on a weekend (or, presumably, on a week day when the children are not required to attend school), there is a need for a judicial determination. The Mother’s proposal, she submitted, was less confusing than the Father’s proposal.
It was further submitted that:
a)The Mother did not oppose an order for unlimited telephone calls as long as those calls take place at a reasonable time;
b)The Mother did not oppose the Father calling the children every day but opposes an order prescribing the times of these calls; and
c)The Mother sought a copy of the provisions of the Father’s work roster and advice as to the date, flight number and time when the Father expected to arrive in Sydney.
Ms Christie told the Court that whenever the Father asked for more time with the children the parties had incrementally increased the time by agreement.
It was particularly important to consider the impact of the proposed orders on the children (see s.60CC(3)(d)). The changes need to be gradual. The younger child, X, has just turned four years of age. The parents do not have a good enough relationship for shared care, as has been made clear by Dr H.
The differences between the parties are fundamental differences. The Father describes the Mother as obsessive and overly prescriptive. He thinks it better not to be too restrictive or cautious.
The Court was asked to note the Father’s attitude to the Mother’s move. She in fact moved to a home in Property P that is around the corner from the Father’s sister. She has just moved to another suburb. However, the Father had, as a result, declined to pay child support as prescribed by the binding Child Support Agreement into which they had entered.
It was submitted that this was an illustration of the reasons why the parties were unable to participate in a shared parenting scheme.
Previously, X had only spent one night at a time away from his mother. The parties then increased the time with the father without the need to bring the matter back to court for consent orders. The time with the father was increased to 3 nights over the Easter break. The mother has suggested a gradual increase in the time.
Counsel for the mother submitted that the mother has prepared her proposals for final orders so as to follow the recommendations of the single expert. The Court is not bound to follow the recommendations of the expert but should do so if the evidence of the parties supports such a course and the expert’s evidence has not been shaken, which is the case here, it was submitted.
In short, Ms Christie submitted for the Mother that:
·The parties lack the ability to co-operate
·Shared care is not viable because of the lack of co-operation
·The Court should follow the advice of the expert in her first and second reports
·The parties have had professional counselling from Dr M and others but it has not been successful
In reply, Mr Bell submitted for the Father that a viable alternative for the children to spend with their father would be a period of 8 nights split into two blocks of four nights.
The Relevant Law
In deciding whether to make a parenting order in relation to these two children, the Court must regard the best interests of the children as the paramount consideration (Family Law Act, s.60CA). The Court determines what is in children’s best interests by considering the matters set out in subsections (2), and (3) of s. 60CC of the Act, having regard to the provisions of subsection (2A) where appropriate.
When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. However, the presumption does not apply in cases of abuse or family violence (s.61DA(2)), and it may be rebutted by evidence that equal shared parental responsibility would not be in the children’s best interests (s.61DA(4)).
When making a final order, the Court must disregard the allocation of parental responsibility made in any interim parenting order (see section 61DB).
If the Court does make an order providing that the children’s parents should have equal shared parental responsibility for the children, the Court is required by subsection 65DAA(1) of the Act to consider whether it is both in the best interests of the children and reasonably practicable for the children to spend equal time with each parent.
If the Court does not make an order for the children to spend equal time with each parent, then subsection 65DAA(2) provides that the Court must consider whether it is both in their best interests and reasonably practicable for the children to spend substantial and significant time with each parent. The term “substantial and significant time” is defined by subsection 65DAA(3).
I have considered all of those matters, where relevant.
Conclusions
In determining what is in the best interests of these two little boys, it is clear, as was submitted by Counsel for the Mother, that this is not a “primary considerations” case, but an “additional considerations” case. By that, I mean that there is ample evidence to show that there is a considerable benefit to these children in having a meaningful relationship with both of their parents. The parties clearly love the children and that love is reciprocated by the children themselves. This evidence comes from the two reports of Dr H, the evidence of the father’s sister and the paternal grandmother and, not least, from the evidence of the parties themselves.
At the same time, there is nothing to suggest that the children are at risk of physical or psychological harm from abuse, neglect or family violence (paragraphs 60CC(2)(b), 60CC(3)(j)). There are no family violence orders (s.60CC(3)(k)).
Thus, the matters to which the court needs to have regard are the additional considerations in s.60CC(3).
The children are too young, at seven and four years of age, for much weight to be given to their expressed views. However, under subsection 60CD(2), the Court can have regard to the contents of the Single Expert’s Reports and her oral evidence. The children showed secure base behaviour and were affectionately bonded to each of their parents. They appeared to feel safe and comfortable with each of their parents. Dr H recounted in her second Report how X burst into tears when it was time for him to leave his father. However, the Father picked him up and cuddled him, soothing his distress. This has been more particularly described in paragraphs 45 and 46 above.
There appears to be no issue that the children have a loving and affectionate relationship with each of their parents. They also appear to have positive relationships with their maternal grandparents, their paternal grandmother and their paternal aunt. The paternal grandfather is deceased.
In my view, both parents wish to participate in making decisions about their children, in spending time with them and communicating with them.
There is a new paragraph (ca) added to subsection 60CC(3) by the recent amendments to the Act:
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Father was subjected to some criticism for declining to make certain payments due under the binding child support agreement between the parties, as a result of his displeasure about the Mother’s move from her previous home on the (omitted) to Property P. Whilst the Father has indicated an intention to rectify this situation, in my view the Father’s hostile reaction to the mother’s decision to relocate to Property P was unreasonable.
The Court has been asked to consider the likely effect on the children of any change of circumstances concerning the children. The Father seeks to increase the amount of time he spends with the children significantly but the Mother believes that a more gradual increase is warranted. The second Report from Dr H recommends that, if X copes well with alternative weekend visits to his father, the length of the boys’ stays with their father could be “incrementally increased from four to seven days by the time X starts school.”[15]
[15] Report 3 April 2012 page 14 paragraph [34]
I am of the view that an incremental increase, as recommended by Dr H, would be in the best interests of the children, especially X. In effect, the time scale between now and the time that X starts school is about nineteen months, which takes in seven school holiday periods. The evidence is that the gradual increase negotiated by the parents earlier this year has not had any adverse effect on X, according to the answers given by the Mother to questions from the Bench. This approach, rather than a sudden increase in over night time away from his mother, would appear to be more in X’s interests.
There is no practical difficulty in the children spending time with or communicating with their father when he is in Sydney, as he now lives in Property W and the Mother lives in Property P. Whilst the Father is away at work, he can only communicate with the children by telephone or electronic means. It would appear to be important for the children’s relationship with their father that he should be able to communicate with them regularly while he is away at work, although telephone calls should be at reasonable hours and not when the children are in bed or about to leave for school or pre-school.
There does not appear to be any issue about the capacity of each parent to provide for the children’s needs, including their emotional and intellectual needs. The Mother’s criticisms that the Father may let Y stay up too late before school the next day or does not feed him sufficiently are relatively minor and the Father should be able to see that both children are properly fed and given sufficient rest.
There seems to be no issue about the capacity of the grandmothers to look after the children’s needs. It appears that the maternal grandfather is not in the best of health, which would limit his ability to look after the children.
The children are two little boys aged seven and four years who appear to have met their normal developmental milestones. They have lived all their lives in a suburban Sydney environment.
The parents each have a loving and nurturing relationship with their children. The Mother has expressed concerns about the Father permitting them to watch DVDs of movies that are perhaps too old for them, and I propose to order that the parents only allow the children to watch films and television programs that have the appropriate classification for the children’s ages.
The Mother has also expressed concern about the children not wearing sunscreen, or sufficient sunscreen when they are with their father. He believes that the Mother is restrictive and over-cautious. However, it is a matter of general knowledge that this country has the highest rate of skin cancer in the world and children need to be appropriately protected from the effects of sunburn, so a cautious approach is in the children’s best interests.
It is always preferable to make parenting orders that would be least likely to lead to the institution of further proceedings in relation to the children. The orders to be made should be in the children’s best interests, having considered the evidence and submissions of both parties.
I am mindful of the Father’s wish to spend more time with his children. It is to his credit that he wishes to do so. The recommendations of the Single Expert, Dr H, are that the parents lack the ability to co-operate sufficiently to make a shared parenting arrangement viable. The Father will continue to feel that the Mother is overly prescriptive and restrictive and it is likely that the Mother will take a long while before she is entirely confident in the Father’s ability to look after the children.
Unfortunately, both of the parents appear to be rigid and inflexible in their views. They remain suspicious of each other. This suspicion will only dissipate when each parent sees that the other parent complies with parenting orders. They have consented to a number of orders to the benefit of their children, so they should be able to comply with them.
The Mother’s proposals, whilst described as following Dr H’s recommendations, appear to do so in a rather conservative fashion. However, the Mother has demonstrated the ability this year to agree with the Father to make a gradual increase in the amount of overnight time the children spend with their father. He wishes to increase the time at a greater rate than has happened so far, but I am not persuaded that this is necessarily in the children’s best interests.
I intend to be guided by Dr H’s recommendations. I found her to be an impressive witness who wrote clear and helpful reports. In cross-examination, Dr H gave evidence in a candid and frank manner. It does appear from her evidence that she sees the Father as one who is capable of dealing with X’s tears by comforting and soothing him when distressed. Dr H’s description of the Father comforting his son when he burst into tears at the interviews for the second report clearly showed the Father as a loving man who dealt gently and appropriately with the little boy when he was upset.
Clearly, a gradual increase in the time the children spend with their father, even if it does not happen as quickly as the Father would like, will be in the children’s best interests.
I have considered the Father’s wish for a specific order about the children spending time with their paternal grandmother. Mrs Black presented as an intelligent and charming lady who would seem to be a loving grandmother to the two boys. She appears to have a lot to offer to the children. I am aware that a notation to Consent Orders is not an enforceable order and merely a statement of fact or intention.
It was put by counsel for the Mother that the grandmother was not a party to the proceedings, but that does not preclude a parenting order being made in her favour (Fletcher & Prince[16] per Coleman J at [58]). However, the Mother in this case has consented to a notation to the Consent Orders in these terms:
That both parties will encourage and facilitate the children’s relationships with extended family members and to this end, the mother agrees to informally negotiate time and communication between the children and the paternal grandmother at times when the father is away from Sydney at such times as agreed between the mother and the paternal grandmother and taking into account the children’s extra curricular activities and daily routine
[16] [2011] FamCAFC 170
This arrangement appears to be in line with the recommendations of Dr H.
I have heard the Mother’s oral evidence. She appeared to be a truthful person who gave her evidence honestly, even though that evidence differed from that of the Father and his sister. She puts herself forward as a person of strong Christian beliefs and a regular churchgoer, as witness her desire for the children to be with her on Easter Sunday, one of the notable days of the Christian Calendar. In the circumstances, it would seem unlikely that a person of those beliefs would commit herself so specifically and so publically to a course of action if she had no intention of honouring that commitment.
Again, there appeared to be no ill-will between the Mother and Mrs Black from the evidence of both ladies. In the circumstances, I am satisfied that there is no need to make a specific parenting order in favour of the paternal grandmother on the basis of the Notation in the Consent Orders.
The parties have consented to an order that they should have equal shared parental responsibility for their children. It is an order that is appropriate in the circumstances, as there are no disqualifying issues of violence or abuse and it is of benefit to the children to have a meaningful relationship with both of their parents. An order for equal shared parental responsibility is in the best interests of the children.
Neither party seeks an order that the children should spend equal time with each parent. However, it is still necessary for the Court to consider such an order under the provisions of s.65DAA(1).[17] The very fact that the Father’s occupation takes him away for periods of 21 days at a time means that an equal time order is not reasonably practicable. From the evidence of the lack of communication between the parties, especially from Dr H, equal time would not appear to be in the children’s best interests. The parties do not have the mutual trust or confidence in each other’s parenting abilities for a shared care arrangement to work.
[17] Mallahan & Mallahan [2010] FamCA 631 at [37]-[39]
The Court must then consider substantial and significant time. The parties have agreed that the children will live with the Mother and spend time with the Father. Again, because of the Father’s offshore work commitments for three weeks at a time, substantial and significant time is problematic from a reasonable practicability point of view, and the parties’ lack of communication and cooperation again raise doubts about whether such an arrangement is in the children’s best interests.
However, they have agreed to a number of orders relating to some school holiday time and special occasions such as Christmas. However, they cannot agree about Easter Sunday or what arrangements should apply to the children’s and the parents’ birthdays if the day does not fall on a weekday. This is not to mention their disagreements about school holidays in the immediate future and the arrangements that will apply during the Father’s 21 day and 42 day stints when he is at home.
I see no reason not to follow the recommendations of Dr H, who said:
Y and X love their father and Mr Black loves them. Y and X need to see Mr Black regularly when he is in Sydney, always remembering that at their young ages the quality of their attachment relationship with their mother is their greatest developmental resource and must be protected.[18]
[18] Report 3.4.2012 page 13 at [31]
Specifically, Dr H recommended alternate weekend visits by the children to their father (Thursday to Monday or Friday to Tuesday) arranged so as to obviate the need for the parents to meet, with handovers at school or pre-school where possible.
Accordingly, I will order that until X commences school in 2014 the children will spend from Thursday (or Friday in accordance with the father’s return to Sydney) to the commencement of school or pre-school on the Monday morning during the school term. This can extend to 5:30pm on the Monday afternoon if the Monday should happen to be a public holiday, which will be a comparatively rare occasion given the Father’s work schedule.
The children can also spend overnight time with their father from after school or pre-school until school or pre-school starts on the Wednesday morning. However, if X is not attending school or pre-school on the Wednesday morning his father will have to deliver him back to the Mother’s residence.
Dr H recommended that if X were to cope well with alternate weekends with his father then the length of the boys’ stays with their father could be incrementally increased from four to seven days by the time he starts school.
In the school holidays for the rest of this year I consider that the boys should spend five nights with their father in a row, from Thursday until the Tuesday afternoon at 5:30pm, which would remain the same for the school holidays in July, September and December. This will then increase by an extra night in the year 2013.
The difficulty of specifying periods of time during the school holidays is that the exact dates of the Father’s work roster remain unknown and it is not possible to predict whether the Father will return to Sydney at the commencement of a school holiday period or during the middle of it or whether he in fact remains away for an entire school holiday, which is always possible if he is away for 21 days at a time and the mid-year school holidays extend for a period of only a fortnight.
The intention is that the Father would have one block of four nights or five nights during each of the mid year school holidays and more in the Summer school holidays if his work schedule permits.
X is to start school in the first school term of 2014, which will commence on 28th January 2014, according to the New South Public Schools Website.
Once X starts school, the time both children will spend with their father will increase again. During the school term, the children will be with their father from after school Thursday, or Friday according to the Father’s arrival in Sydney, until the commencement of school on the Monday morning. This will give the children a block of four nights with their father, increasing to five nights if the Monday is a public holiday, when the children will stay with their father until school starts on the Tuesday.
The children will still go to their father’s home on Tuesday afternoons and go from there to school on the Wednesday morning.
For school holidays once both children are at school, it would seem to be in accordance with Dr H’s recommendations that the boys spend half of the Autumn, Winter and Spring school holidays with their father, which will give them just over a week at a time with him.
During the Christmas/January long school holidays in each year, it would be appropriate for the boys to spend a week at a time with each parent in a week-about arrangement.
As for birthdays, the parties have agreed on times the children will spend with their father on week days, which appears to refer to week days during the school term. However, they have not agreed on weekend days, nor have they agreed to week days during the school holidays. X’s birthday falls on 17th April, which fell in the school holidays this year. His birthday will fall during the school holidays from 2013 through to 2015.
The Mother’s proposal, of 9:00am to 1:00pm, is perhaps a little short. In my view the time should be from 9:00am to 2:00pm, to allow the Father to take the children to lunch if the birthday falls on a weekend or on a week day during the school holidays. I will order accordingly.
The parties disagree about times at Easter. Easter Sunday has special significance for the Mother as a churchgoing Christian and I consider that the children should spend Easter Sunday with her.
The proposed orders, including the Consent Orders, appear to me to be as near to substantial and significant time as can be arranged, bearing in mind the constraints of the father’s work schedule.
It is not unreasonable for the Mother to retain the children’s passports when the children are not travelling out of Australia with their father. The children will be living with their mother in accordance with the Orders to which the parents have consented. However, the Mother must make the passports available to the Father when the children are travelling out of Australia, in accordance with the Orders to which they have consented.
It appears to me to be only practical that the Father should make a copy of his work roster available to the Mother when he receives it. There would hardly be anything secret about it.
The parties have agreed to a number of Orders. They have not agreed to others, and the Court has been obliged to make a judicial decision as to what Orders are in the children’s best interests. It may well come about that a situation may arise where the Orders made are not convenient or appropriate, in which case the parties must use their best endeavours to arrive at an arrangement that is in their children’s best interests.
The parents remain suspicious and mistrustful of each other. However, this suspicion and mistrust should dissipate over time if each parent shows the other that he or she can comply with the parenting orders made. The evidence is clear that neither parent is a bad parent. Their parenting styles may differ, but they each love their children and their children love them. The parents should remember those facts and act accordingly.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 26 June 2012
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